Opinion 10-150

October 28, 2010

Digest:         A judge who believes that he/she can be fair and impartial may preside when the court clerk testifies pursuant to subpoena about the defendant providing proof of compliance with a condition of the defendant’s sentence.

Rules:          CPLR 2301; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 08-158; 99-115 (Vol. XVIII); 91-82 (Vol. VIII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge advises that the District Attorney has subpoenaed one of the court clerks to testify in a case that is “an open case in our Court.” The subpoena requires the court clerk to “testify as to the defendant providing proof to the Court with regards to the community service.” The judge asks whether the court must now “make a reasonable inquiry of the district attorney, defendant and the defense attorney as to any conflict of interest” and “submit a request to the administrative judge for the case to be removed.”

         The court clerk, like judges and other persons, should comply with a lawful subpoena, subject to any appropriate legal objections or motions (see CPLR 2301; Opinions 08-158; 99-115 [Vol. XVIII]; 91-82 [Vol. VIII]). The inquiring judge is not ethically required to notify any administrative authority about a subpoena a court employee receives directing him/her to testify (see Opinion 08-158), but may wish to consult his/her supervising judge to determine if any other rule or policy requires the judge to do so.

         A judge must always avoid impropriety and the appearance of impropriety (see NYCRR 100.2) and must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not allow his/her relationship with the court clerk to influence his/her conduct or judgement (see 22 NYCRR 100.2[B]). And, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1]).

         Because it is the judge’s responsibility to disqualify him/herself when warranted, the judge need not ask the parties or their counsel whether they believe the court has a conflict of interest. The mere fact that the court clerk is subpoenaed to testify about facts within his/her knowledge as a court employee does not, in and of itself, give rise to a reasonable appearance of impropriety that would mandate the judge’s disqualification. Therefore, as long as the judge concludes that he/she can be fair and impartial, the judge may continue to preside (see 22 NYCRR 100.3[E][1]). If a party objects to the judge’s continued participation in the case, whether to exercise recusal remains within the judge’s discretion after considering the particular circumstances in the case (see People v Moreno, 70 NY2d 403 [1987]).